Witsoe v. Nelson , 164 Mont. 511 ( 1974 )

PER CURIAM:

This is a petition for writ of certiorari seeking a review by "the court of the action of the Honorable R. J. Nelson, Judge of the Eighth Judicial District in Cascade County. The petitioner alleges that the trial judge erroneously ordered him to furnish names of alibi witnesses to the county attorney under circumstances wherein the petitioner was seeking to move the discretion of the trial judge for “good cause shown” to permit the defense of alibi under section 95-1803 (d), R.C.M.1947.

Petitioner had been charged in justice court on October 5, 1973, with sale of dangerous drugs. An information in three counts was filed; and on October 25, 1973, petitioner plead “not guilty”. He also made a motion to dismiss count III on grounds that it did not specify time and place as definitely as it should be done. The motion was denied with the judge observing:

“THE COURT: The name of the Informants is denied. If they can fix the date more accurately than the 20th day of September through the 4th day of October they will be required to do so. Or if there is more than one sale, all right; but it will not be dismissed because they could just file it all over again. Good cause shown here that statutory rights of his have not been prejudiced at this time. If they can fix it more certainly for you they will do so. I am denying your motion on the name. The informant is denied.”

Again, on April 17, 1974, Judge Nelson heard further arguments. In that exchange, the transcript reveals that the state, on trial, will be relying on the defendant’s own statements to some extent and on the statement or testimony of the person to whom the sale was made. At this stage, and with what little information we have it is difficult to understand what alibi defense is sought to be interposed. We are being asked to review the record. The record does not reveal any error at this time. It may well develop during trial that the state’s case will develop a fact situation to which the defense of alibi may be pertinent or material. At that time, for good cause shown the defendant may need some kind of relief but at this time we see no need to review the trial court’s action.

Accordingly, the petition for writ of review is denied, without prejudice.

HONORABLE THOMAS DIGNAN, District Judge, sat in place of CHIEF JUSTICE JAMES T. HARRISON.